Health Law Advisor

On February 19th, Brenna Jenny, Deputy Assistant Attorney General for the Commercial Litigation Branch at the U.S. Department of Justice, provided the keynote speech at the Federal Bar Association’s Qui Tam Conference.

At this address, and in an earlier panel discussion centering on Diversity, Equity, and Inclusion programs (DEI), Jenny focused on False Claims Act (FCA) enforcement priorities and DOJ enforcement practices, including how DOJ identifies cases, when it might dismiss cases, and its approach to resolutions.

On July 17, 2025, the U.S. Court of Appeals for the Fourth Circuit held that a federal district court was “within bounds to order a do-over” in the case of Ron Elfenbein, a Maryland doctor who was found guilty of COVID-19-related health care fraud in 2023 in connection with upcoding and false documentation. Elfenbein was acquitted by the district court four months after his trial.

The Fourth Circuit affirmed a contingent order of the U.S. District Court for the District of Maryland granting a new trial and also reversed Elfenbein’s acquittal, rejecting the trial court’s conclusion that the jury had too little evidence to convict.

“[W]e do agree that the case was close—and we find it significant that the most damning evidence came not from the government’s witnesses but Elfenbein’s,” Judge Julius N. Richardson wrote for the appellate court.

On May 12, 2025, the U.S. Department of Justice’s Criminal Division released a new guidance memo on white-collar enforcement priorities in the Trump Administration entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.” In this memo, and the accompanying speech by Matthew R. Galeotti, the Trump  Administration’s appointed Head of the Criminal Division, the DOJ reiterated its previously stated commitment to prosecuting illegal immigration, drug cartels, and transnational criminal organizations. For the first time in the new Administration, however, the DOJ clearly articulated new white-collar enforcement priorities, directing Criminal Division white-collar prosecutors to follow three core tenets: focus, fairness, and efficiency. As detailed below, the new memo sets forth the following three priorities:

1. Focus on High-Impact Waste, Fraud, and Abuse Harming Vulnerable Taxpayers

It should be no surprise that the administration is targeting actors that profit through “waste, fraud, and abuse.” The memo sets clear priorities for its prosecutors to investigate, listing as the #1 priority health care fraud and federal program and procurement fraud.  The memo goes on to provide a top 10 list of “high-impact areas”, with “trade and customs fraud, including tariff evasion” as #2.  Heavy focus is given to fraud perpetrated by foreign actors and conduct threatening U.S. national security. Also listed is fraud victimizing U.S. investors, including elder fraud and Ponzi schemes. Appearing as #8 on the list is violations of the Controlled Substances Act and the Federal Food, Drug and Cosmetic Act, including the creation of counterfeit pills laced with fentanyl and the “unlawful distribution of opioids by medical professionals and companies.”